Appeal Panel Hearings

8 APR 2009

Mr Mark Halls - 07 April 2009

Case ofMr Mark Halls MRICS [ 1129094 ], Woodbridge, Suffolk

on7 April 2009

atRICS, Westwood Way, Coventry, UK

Determination with Reasons

Mr Halls was present at the hearing and represented by Mr Miles Bennett, Barrister, of 5 Paper Buildings, instructed by Birketts Solicitors. At the outset of the hearing, after hearing submissions and given that there was no objection by the RICS Presenting Officer, the Panel allowed into evidence a copy of Mr Halls’ telephone bill for 18 – 21 April 2008.

The Panel has carefully reviewed the decision of the Disciplinary Panel made on 5 November 2008 by which the Disciplinary Panel ordered expulsion of Mr Halls from membership following his admission of a breach of Rule 3 of the Rules of Conduct for Members.

Rule 3 states that Members must at all times act with integrity and avoid conflicts of interest and any actions or situations that are inconsistent with their professional obligations. The basis for the breach was a conviction in Ipswich Magistrates Court on 12 May 2008 for 5 counts of acting contrary to Section 13 of the Trade Descriptions Act 1968.

The Panel has taken into account that it should not interfere with the decision of the Disciplinary Panel unless satisfied by the Appellant that the original decision was wrong.

The Panel has decided to allow the appeal.

Its reasons are as follows:

The Disciplinary Panel’s decision that Mr Halls was liable to disciplinary action has not been challenged and this appeal relates only to the issue of sanction. Mr Bennett submitted on behalf of Mr Halls that the decision to expel was disproportionate and excessive.

In summary, he submitted that Mr Halls had not done himself justice by representing himself at the original hearing; that the Disciplinary Panel had erred in its assessment of the seriousness of the offences; and that the Disciplinary Panel had wrongly taken into account issues arising from the Annual Return submitted by the company, which had not formed part of the original charge.

The Panel concluded that the Disciplinary Panel took into account matters which it should not have done and also erred in the weight it gave to certain issues. The Appeal Panel noted that this alone does not mean that the Disciplinary Panel’s decision was necessarily wrong, so went on to consider whether the areas in which it considered that the Disciplinary Panel had erred also meant that the decision to expel was wrong. The Panel has concluded that the decision was wrong for the following reasons:

The Disciplinary Panel took into account issues arising from the Annual Return, and stated that it was “very concerned” by them. RICS has now conceded that the Annual Return should not have been before the Disciplinary Panel. The Disciplinary Panel also referred in its determination to Mr Halls “apparently “ telephoning RICS on 18 April 2008 to discuss the possible court proceedings.

This had not been part of RICS’ case and Mr Halls was not given a proper opportunity to address this or provide evidence in relation to it. While the Disciplinary Panel went on to accept that Mr Halls had not concealed matters from RICS, the wording of the determination indicates that having taken into account issues which it should not, the Disciplinary Panel allowed these issues to cloud its views as to Mr Halls’ credibility and led it to impose an excessive penalty.

The Disciplinary Panel erred in assessing the seriousness of the offences by giving too much weight to the penalties which could have been imposed by the criminal courts in hypothetical circumstances – ie if Mr Halls had been convicted on indictment (which he was not)

The Disciplinary Panel appears to have found a breach of the RICS Practice Statement relating to Estate Agency, which was not a document before the Disciplinary Panel and was never put to Mr Halls as part of the proceedings

It is not clear from the Disciplinary Panel’s determination why it dismissed a fine as the appropriate penalty. It said that it considered “whether to additionally impose a fine” in addition to expulsion, but it was not clear to the Panel why a fine had been dismissed as a free standing option.

Having allowed the appeal, the Panel decided to vary the penalty imposed by the Disciplinary Panel and to impose a fine of £15,000. Its reasons are as follows.

Mr Halls admitted a breach of Rule 3 and in doing so admitted that he had not at all times acted with integrity. He had been convicted in his personal capacity on 5 counts of acting contrary to Section 13 of the Trade Descriptions Act 1968 in that, according to the memorandum of conviction, he gave false indication that a service had been supplied by him to another by means of Seatons Estate Agents boards placed at five properties, indicating that they had been sold when in fact they had not been sold or for sale.

While there are a number of mitigating factors, in that Mr Halls had no previous history, there were many testimonials attesting to his previous good character, Mr Halls co operated with the RICS investigation and took remedial action by implementing a Seatons’ board policy, there were also a number of aggravating factors. These were that Mr Halls stood to benefit by the erection of sales boards on properties owned by a company of which he was a director. This was because the placing of the boards served to enhance the reputation of the firm and the volume of its business.

In addition the boards were in place for some time and Mr Halls did not take immediate action to remove the boards once the first board at 15 The Street, Melton was brought to his attention. Instead he left it to Trading Standards to identify the location of the other boards. The Panel concluded that if Trading Standards could locate the other boards, it would have been possible for Mr Halls to do so himself.

In view of these matters, the Panel agreed with the Disciplinary Panel that a caution or reprimand would not adequately address the serious nature of the breach or the aggravating factors identified above.

The Panel also agreed with the Disciplinary Panel’s reasons for not imposing conditions or undertakings.

The Panel has concluded that the fine and the level of fine imposed is necessary because the public demands high standards of probity and integrity from Members. Regulation is a serious issue and RICS has an obligation to set and uphold proper standards amongst its membership. The public can expect those standards to be enforced against members. Being a member of RICS confers both benefits and obligations and the fine which the Panel has imposed has been set with a deterrent element in mind as well as taking into account the matters identified above.

Determination on Publication and Costs

PublicationThe Appeal Panel directs that the appeal decision be published on the same basis as the decision of the Disciplinary Panel.

CostsNo estimate of costs had been served on behalf of Mr Halls and Mr Bennett did not make an application for costs on his behalf. The Panel has decided that the order for costs made by the Disciplinary Panel on 5 November 2008 should stand. It is right that Mr Hall should remain liable for those costs because these proceedings as a whole were necessary as a result of his own actions through being convicted of the Trading Standards offences.

In relation to today’s proceedings, the Panel has decided to make no order as to costs. This is because the Panel has rejected RICS’ application for costs because it considers it would be unfair for Mr Halls to pay any costs for today, as his appeal was successful on a number of grounds.

The Panel has decided that RICS should not pay Mr Hall’s costs because he has not made an application for his costs and in any event the RICS Sanctions Policy indicates that on the principles of Baxendale Walker v Law Society, costs should not ordinarily be awarded against RICS unless the proceedings have been improperly brought or have been a “shambles from start to finish”, which these have not.